293 S.W. 817 | Tex. Crim. App. | 1927
Lead Opinion
The appellant was indicted and tried for *497 felony theft and convicted of misdemeanor theft, and his punishment assessed at confinement in the county jail for six months and a fine of $250.
The charging part of the indictment under which appellant was tried and convicted reads as follows:
"Did then and there unlawfully and fraudulently take one Dunlop balloon automobile casing of the value of fifteen dollars, and two Fisk balloon automobile casings of the value of fifteen dollars each, totaling thirty dollars, three automobile rims of the value of one dollar each, totaling three dollars, and three automobile inner tubes of the value of two dollars each, totaling six dollars, the value of all of the said articles aggregating fifty-four dollars, the same being then and there the corporeal personal property of and belonging to L. E. Hawkins, from the possession of said L. E. Hawkins," etc.
We have examined the statement of facts carefully and find the same amply sufficient to sustain the verdict of the jury.
The only defense made by the appellant and the only evidence offered was testimony tending to show the aggregate value of the property alleged to have been stolen to be under the value of fifty dollars. Inasmuch as the appellant was convicted of misdemeanor theft, the question of felony theft passes out of the case.
Appellant, by a motion to quash the indictment and also by bills of exception Nos. 1 and 2, raises the question as to whether or not the appellant should have been indicted and tried under Art. 1346 of the Penal Code instead of Art. 1410, the general theft statute. The offense denounced under Art. 1346 is an entirely separate and distinct offense from that of theft. The offense established by the proof in this case against the appellant was theft. The offense denounced in Art. 1346 is malicious mischief. The malicious and wilful removal from any motor vehicle or bicycle, etc., of any tire, rim, etc., without authority from the owner and unlawfully would constitute a violation of the law under said Art. 1346, but when the facts go further, as they did in this case, and show a fraudulent design to appropriate the property to the use of the offender, and deprive the owner of the value of the same, the offense assumes the graver character of theft and, if the value of the property be under fifty dollars, is punishable by confinement in the county jail and by fine or by confinement in the county jail alone.
The state had the right to elect to prosecute for the theft of the articles instead of prosecuting for the offense under Art. 1346. *498
There being no errors in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
Appellant renews his contention that Art. 1346, P. C. (1925) supplanted Art. 1410, P. C. (1925) in punishing one for theft of parts and automobile accessories named in Art, 1346, which reads as follows:
"Whoever shall maliciously or wilfully and without authority from the owner unlawfully remove from any motor vehicle or bicycle any portion of the running or steering gear, pump, or any tire, rim, robe, cover, tube, clock, casing, radiator, fire extinguisher, tool, lamp, starter, battery, coil, spring, gas or oil tank, bell or any signal device, speedometer, license number, horn, box, basket, trunk or carrier, shield, hood, oiler, gauge, chain or any device, emblem or monogram thereon, or any attachment, fastenings or other appurtenances or any other part attached to such vehicle which is necessary in the use or operation thereof, or whoever knowingly buys, receives or has in his possession any of said articles or any part thereof so unlawfully removed, shall be fined not exceeding one hundred dollars, or be imprisoned in jail not less than six months nor more than one year."
It is appellant's contention that one who removes from an automobile any of the parts or accessories named in said article cannot be prosecuted for theft, but that said Art. 1346 is a special statute relating to the taking of the property mentioned therein which is controlling. We are referred to Acton v. State, 104 Tex.Crim. Rep.,
Appellant further urges that the latter part of Art. 1346 making guilty one who "knowingly buys, receives or has in his possession any of said articles * * * unlawfully removed" from an automobile is inconsistent with any other idea than the fraudulent removal of them and the further purpose to deprive the owner of their value, and that this wording shows it to have been either the obvious intent of the legislature, or a necessary result, that one who might steal the property mentioned in Art. 1346 should be prosecuted for malicious mischief. We think such implication does not necessarily follow from the language used. One might "knowingly buy, receive or be in possession" of articles which were maliciously and wantonly removed from an automobile in the absence of any fraudulent intent to steal them at the time of their removal, hence no theft by the party *500
removing, nor receiving of stolen property by the one who buys or receives it. We conclude that one who removes from an automobile the property enumerated in Art. 1346 with the fraudulent intent to appropriate them to his own use and to deprive the owner of the value may be prosecuted under the general theft statute (Art. 1410), and that appellant's contention to the contrary should not be sustained. Jordan v. State (No. 10372, opinion March 9, 1927). It is believed that this announcement is not in conflict with the holding in Busey v. State, 87 Tex.Crim. Rep.,
It is the duty of the court to construe the various articles of the statute in such way as will give effect to all of them if it can be done without violence to statutory construction, and an effort to do this has led us to the conclusion that there is no such conflict between Arts. 1346 and 1410 as will prevent each being operative for the protection of property designated under Art. 1346, the offense committed depending on the facts of the particular case.
Appellant's motion for rehearing is overruled.
Overruled.